Thinking of making a complaint against a police officer? Thinking of suing as well?

You might want to think twice before filing that complaint.

That's the advice I'm sure Wayne Penner would give you.

He was arrested in court by two Niagara police officers after making comments from the body of the court during a minor hearing involving Penner's wife.

The presiding Justice of the Peace didn't direct police to arrest Penner.

Rather, a court officer asked Penner to leave.

Penner apparently pulled away when the officer put his hands on him and was then arrested.

Penner's encounter with the police was not without incident.

Photos taken after he had been transported to the police station show scrapes and bruises on his face, a black eye, and other injuries.

So he did what many people would have done: He filed a complaint under the Police Services Act.

What Penner didn't know, and indeed what most lawyers wouldn't have known, is that filing a complaint would fatally prejudice Penner's right to sue the police to obtain financial compensation for his injuries.

The purpose of a PSA complaint against a police officer is to determine if that officer is guilty of misconduct and ought to be disciplined.

No financial compensation may be awarded to a complainant, even if an officer is found guilty of misconduct.

The complainant may appear at the hearing but does not direct the prosecution of the complaint.

Penner's complaint was heard by a retired police superintendent.

At the end of the hearing all charges against the police officers were dismissed.

The retired superintendent concluded the arrest was proper and that no unnecessary force had been used in either the arrest or at the police station.

By contrast, the purpose of a civil lawsuit against a police officer revolves around financial compensation to a potential victim.

In that case, the potential victim is the plaintiff and he directs the lawsuit.

Penner sued the police for unlawful arrest, use of unnecessary force during and after the arrest, false imprisonment and malicious prosecution.

But his lawsuit was tossed out on a summary motion prior to trial on the basis of a legal doctrine known as res judicata or issue estoppel.

The dismissal was upheld by the Ontario Court of Appeal. As stated by the OCA, this doctrine "prevents the re-litigation of as issue a court or tribunal has decided in a previous proceeding."

Despite acknowledging disciplinary proceedings and civil lawsuits have different purposes, that Penner had no financial stake in the disciplinary hearing and that he didn't direct his case at that hearing, the OCA nonetheless ruled Penner's lawsuit must be dismissed, primarily due to the conclusions reached by the retired police superintendent during the disciplinary hearing.

To be fair, the OCA's ruling doesn't apply to all police complaints as the court still retains an ultimate power to determine if applying issue estoppel would produce an unjust result.

Still, it's now clear filing a complaint against a police officer may ultimately result in the dismissal of a civil lawsuit.

This 2010 ruling will likely result in less police complaints and more lawsuits, something we shouldn't encourage.

An application for permission to appeal it to the Supreme Court of Canada is pending. Unless the SCC reverses this decision anyone contemplating filing a complaint against police should tread carefully.

Finally, unless the SCC reverses the decision, Penner is stuck with two court orders requiring him to pay police legal fees of $18,850.